Taylor v. Myers
| Decision Date | 31 March 1863 |
| Parties | ZALMAN TAYLOR et al., Respondents, v. MORRIS D. MYERS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Geo. Marshall, for respondents.
McClellan, Moody & Hillyer, for appellant.
The points made by appellant are--1. The last instruction given for the respondents is erroneous. 2. The court below admitted illegal testimony offered by the respondents. 3. The court below rejected legal testimony offered by the appellant.
As to the first point, the instruction objected to is as follows:
“It is not necessary for plaintiffs to prove that defendant was about fraudulently to conceal, remove or dispose of all of his property and effects, so as to hinder or delay his creditors; but if they find that he was about fraudulently to conceal, remove or dispose of any part of his property and effects, with intent to hinder or delay his creditors, then they will find for the plaintiffs.”
There is no error in this instruction. The real substance of the issue was, did the defendant intend to hinder and delay his creditors by fraudulently concealing, removing or disposing of his property? This could be as effectually done by concealing, removing or disposing of a part of his property, as by concealing, removing or disposing of the whole of it. The appellant's construction of the act would nullify it; for, in every case, as a fraudulent debtor could retain a portion of his property--however small--subject to the claims of his creditors, and thus avoid the effect of the statute; and it would be almost impossible in any case for an attaching creditor to establish that all of the defendant's property was about to be, or had been, fraudulently concealed, removed or disposed of.
As to the second point, the appellant has not pointed out the particular testimony which he supposes to have been illegally admitted when offered by the respondents; and upon looking into the record, we find that the testimony was principally by depositions, and objections to the testimony were stated as follows: “The defendant objected to so much of said deposition as is included in brackets, and marked in the margin ‘objected to by defendant,’ on the ground,” &c. There are no parts of the deposition answering to that description. There are in places along the margin of the transcript of the deposition, pencil marks or lines of greater or less length, opposite some of which are written the word “out,” and...
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... ... v. Hargadine, 56 Mo.App. 249; State v ... O'Neil, 151 Mo. 85; National, etc., Works v ... Ring, etc., Co., 118 Mo. 365; Taylor v. Meyers, ... 34 Mo. 81; Glacier v. Walker, 69 Mo.App. 291 ... Cole, ... Burnett & Moore for respondents ... ...
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